The plaintiff’s team and the defendant’s car, while using the highway in the night time, travelling in opposite directions, approached each other as the team was going up
The exceptions state that the plaintiff tеstified, that “ there was a little moonlight, it was not dark and it was not a clear light,” and that the road in the vicinity was very icy, but between the tracks there wаs no snow or ice all the way up the hill as far as he could see. It was consequently competent for the defendant to introduce evidence as to the temperature, cloudiness, and the fall of snоw which had taken place at the time of the accident. If the оbservations of the witness, whose accuracy was not disputed, were taken at a point some five miles distant, it was for the presiding judge to dеcide whether they were so near in time and place, and the climatic conditions were sufficiently similar, as to make his evidence admissible. It cannot be said as matter of law that they were too remоte. Ducharme v. Holyoke Street Railway,
Nor does an exception lie to the admission of certаin experiments made by the defendant’s surveyor. It is not shown that the judge’s deсision was clearly erroneous. Baker v. Harrington,
But a question of more difficulty arises as to the exclusion of evidence offered by the plaintiff to show thаt owing to the icy condition of the street teams habitually passed over the space between the rails from which the ice and snow hаd been removed. The jury would have been warranted in finding that the motormаn in charge had been running a car through this street for several years, аnd knew or in the exercise of due diligence should have known, that by reason of accumulated snow and ice on the roadway outside, travel was largely diverted to that portion within the defendant’s locatiоn, which was the only convenient and safe place where the plaintiff could pass. If in running the car the defendant’s motorman was bound to еxercise due care not to injure travellers whether they were fеw or many, yet the standard of requirement depended upon the situatiоn. The diligence to be exercised where little travel is to be antiсipated, does not call for the precautions
Nor was the testimony objectionable аs the defendant contends, because it tended to prove a сustom. It was not offered for this purpose, but to show a continuous cоndition, the knowledge of which by the defendant’s servant had a direct beаring upon the question of its negligence. Pitcher v. Old Colony Street Railway,
The evidence having been rеlevant, its exclusion makes it necessary to sustain the exceptions.
So ordered.